WV PARTNERS LLC v. HUDSON PRIVATE CORP (2025)

Judgment, Supreme Court, New York County (Andrew Borrok, J.), entered June 5, 2024, awarding a money judgment in plaintiff's favor, and bringing up for review an order, same court and Justice, entered April 2, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment, unanimously affirmed, with costs.  Appeal from aforementioned order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff adequately established its quantum of damages by furnishing the parties' two funding agreements.  The two funding agreements provided the means through which both the Investor Fixed Return and the penalty interest were to be calculated.  Plaintiff's managing partner's affidavit identified the principal amount owed and the date on which interest began to accrue, the dates and amounts of defendant's payments, and the August 31, 2023 date on which interest was calculated.  Together, these statements allowed the amounts due to be ascertained (see Boland v. Indah Kiat Fin. [IV] Mauritius, 291 A.D.2d 342, 342–343, 739 N.Y.S.2d 122 [1st Dept. 2002]).

Defendant's argument that plaintiff's calculations were inconsistently applied — to principal first in the case of one funding agreement, and to interest first in the case of the other — is unavailing.  The agreements were silent as to whether plaintiff was required to apply defendant's payments first to principal or first to interest, and there is no evidence that defendant directed plaintiff to apply its payments to principal first (see Davison v. Klaess, 280 N.Y. 252, 261, 20 N.E.2d 744 [1939]).  Plaintiff's single application of $209,531 to principal owed under one of the agreements did not raise an issue of fact as to whether this application reflected the parties' course of dealing (see General Motors Acceptance Corp. v. Clifton–Fine Cent. School Dist., 85 N.Y.2d 232, 237, 623 N.Y.S.2d 821, 647 N.E.2d 1329 [1995]).

Plaintiff concedes that it incorrectly added $126,814.04 in penalty interest to its calculation of debt payments under one of the agreements when it should have applied the interest to the other agreement's debt payments.  However, this misapplication would not affect the amount of the judgment, as defendant does not contest the relevant dates, dollar amount, or interest rate for that penalty interest, which would be the same regardless of the agreement with which the interest should have been associated.

We decline to consider defendant's argument that the parties' subsequent payment agreement, made in conjunction with a 2022 settlement agreement between the parties and nonparty Bron Creative USA, Corp., required plaintiff to apply payments for one of the funding agreements to the principal first, which defendant improperly raises for the first time in its reply brief (see Matter of Erdey v. City of New York, 129 A.D.3d 546, 546, 11 N.Y.S.3d 592 [1st Dept. 2015]).

Since the court's summary judgment order made no statement to the effect that plaintiff was required to settle the judgment, plaintiff did not need to comply with the notice requirements of Uniform Rules for Trial Courts (22 NYCRR) § 202.48(c).